HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

SWP. no. 907/2005

Date of Decision: 26.08.2010

_________________________________________________

Rajni Gupta

Vs.

State & Ors

__________________________________________________

Coram:

HON’BLE MR. JUSTICE SUNIL HALI, JUDGE.

Appearing Counsel:

For the Petitioner(s):

Mr. Abhinav Sharma, Advocate.

For the Respondent(s)

Mr. Shaista Hakim, Dy.AG.

Mr. Rahul Pant, Advocate.

i)

Whether to be reported in

Press, Journal/Media

:

Yes

ii/

Whether to be reported in

Digest/Journal

:

Yes

Restoration of seniority of respondent no.4 as Ophthalmic

Assistant with effect from 26.04.1988 as also his promotion as

Senior Refractionist with effect from 07.09.1994 is the subject

matter of challenge in this writ petition.

The petitioner and respondent no.4 are locked in a

litigative process for more than one and a half decade. One

trying to unsettle the position of the other. In order to

understand the controversy involved in this petition, certain

facts are required to be noted:-

Petitioner came to be appointed as a Refractionist in

Government Medical College Jammu on adhoc basis in the

year 1989. Said appointment was regularized with effect from

11.09.1989. Respondent no.4 was appointed as Ophthalmic

Assistant in the year 1988 in the Health Department. The

appointment of the petitioner was challenged by respondent no.

4 in SWP no. 441/1990 on the ground that she was not eligible

to be appointed as a Refractionist. It seems that respondent no.

4 withdrew the said writ petition on the assurance of the State

that he would be considered for appointment in the Medical

Education Department. The services of respondent no.4 came

to be transferred from the Health Department to Medical

Education Department in the year 1989. It seems that this order

was subsequently canceled by the administrative department,

resulting in filing of another writ petition by respondent no.4. It is

contended that on the pain of contempt, the order issued by the

Court was implemented and vide order dated 11.08.1991

respondent no.4 was ordered to be transferred to Medical

Education Department as an Ophthalmic Assistant.

Petitioner was confirmed as a Refractionist in the year

1993 and was promoted as Senior Refractionist vide order

dated 30.11.1994 with effect from 07.09.1994 for a period of

two years. Her appointment was confirmed in the year 1999.

After his transfer from the Health Department to Medical

Education Department, respondent no.4 filed a writ petition in

this Court for restoration of his seniority with effect from the

22

date he was appointed in the Health Department i.e. from

26.04.1988. Said writ petition, bearing SWP no. 1078/1992 was

allowed by this Court on 16.08.2000 with directions to the State

to consider the claim of the petitioner in the light of observations

made therein within a period of three months. On the pain of

contempt petition, official respondents vide government order

No. 257-HME of 2005 dated 01.04.2005 restored the seniority

of the respondent no.4 as Ophthalmic Assistant in Medical

Education Department with effect from 26.04.1988.. After

restoration of his seniority, respondent no.4 was adjusted as

Senior Refractionist with effect from 07.09.1994.

It is important to mention here that the order appointing

the petitioner as Senior Refractionist substantively from the

year 1999 was questioned by one Bihari Lal Sharma in SWP

no. 3/2000 and by respondent no.4 through SWP no.

345/2000. The grievance of the respondent no.4 in the said writ

petition was that he was substantively appointed as Ophthalmic

Assistant on 26.04.1988 and at the time of promotion of

petitioner as Senior Refractionist, he was working in the

Medical E